Insurance Commission (WA) v Kightly

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INSURANCE COMMISSION OF WESTERN AUSTRALIA -v- KIGHTLY [2005] WASCA 154



(2005) 30 WAR 380
SUPREME COURT OF WESTERN AUSTRALIACitation No:[2005] WASCA 154
THE COURT OF APPEAL (WA)
Case No:FUL:17/20049 MAY 2005
Coram:STEYTLER P
WHEELER JA
ROBERTS-SMITH JA
15/08/05
25Judgment Part:1 of 1
Result: Appeal allowed
A
PDF Version
Parties:INSURANCE COMMISSION OF WESTERN AUSTRALIA
PAUL KIGHTLY

Catchwords:

Insurance
Doctrine of subrogation
Respondent injured during training course and paid $70,557.30 by appellant insurer
Respondent then received $145,000, plus costs under consent judgment by settlement deed against tortfeasor
Appellant insurer sued respondent for repayment of $70,557.30, either under terms of the insurance policy or under doctrine of subrogation
Equitable nature of doctrine of subrogation
What insurance policies doctrine of subrogation may apply to
Whether personal accident insurance policy was an indemnity policy or contingency policy
Whether payment by consent judgment constituted a "payment by way of benevolence" or an "ex gratia payment" incapable of being subrogated

Legislation:

Insurance Contracts Act 1984 (Cth), s 48(2)

Case References:

AFG Insurances Ltd v City of Brighton (1972) 126 CLR 655
Australasian Conference Association Ltd v Mainline Constructions Pty Ltd (in liq) (1978) 141 CLR 335
Blaauwpot v Da Costa (1758) 1 Ed 130; 28 ER 633
Boag v Standard Marine Insurance Co Ltd [1937] 2 KB 113
Bradburn v The Great Western Railway Company (1874) LR 10 Ex 1
British Traders' Insurance Co Ltd v Monson (1964) 111 CLR 86
Burnand v Rodocanachi Sons & Co (1882) 7 App Cas 333
Castellain v Preston (1883) 11 QBD 380
Commercial Union Assurance Co v Lister LR (1874) 9 Ch App 483
Dalby v The India and London Life-Assurance Co (1854) 15 CB 365
Dufourcet & Co v Bishop (1886) 18 QBD 373
Gibson v Sun Life Assurance Co of Canada (1984) 6 DLR (4th) 746
Glynn v Scottish Union & National Insurance Co Ltd (1963) 40 DLR (2d) 929
Gould v Curtis [1913] 3 KB 84
Guthrie House Ltd v Cornhill Insurance Co Ltd (1982) 2 ANZ Ins Cas 60-466
Horse, Carriage and General Insurance Co (Ltd) v Petch (1916) 33 TLR 131
Hussain v New Taplow Paper Mills Ltd [1988] 1 All ER 541
In re TH Knitwear (Wholesale) Ltd [1988] 2 WLR 276
Insurance Commission of Western Australia v Kightly [2004] WADC 5
John Edwards and Company v Motor Union Insurance Company Ltd (1922) 2 KB 249
Levesque v Co-operative Fire & Casualty Co (1976) 68 DLR (3d) 553
McCamley v Cammell Laird Shipbuilders Ltd [1990] 1 All ER 854
Morganite Ceramic Fibres Pty Ltd v Sola Basic Australia Ltd (1987) 11 NSWLR 189
Napier v Hunter [1993] AC 713
Orakpo v Manson Investments Ltd [1978] AC 95
Orion Insurance Co Ltd v Hicks (1972) 32 DLR (3d) 256
Phoenix Assurance Co Ltd v Spooner [1905] 2 KB 753
Randal v Cockran (1748) 1 Ves Sen 98
Re Palmdale Insurance Ltd (In liq) (No 3) [1986] VR…
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Details
Case
[2005] WASCA 154
Decision Date

CaseChat Overview and Summary

The matter of Insurance Commission (WA) v Kightly involved a dispute between the Insurance Commission of Western Australia, the appellant, and the respondent, Kightly. The respondent was injured during a training course and had received compensation of $70,557.30 from the appellant, an insurer. Subsequently, the respondent settled with the tortfeasor for $145,000, plus costs, under a consent judgment. The appellant sought repayment of the $70,557.30 from the respondent, either under the terms of the insurance policy or through the doctrine of subrogation. The court was required to determine the equitable nature of the doctrine of subrogation, what types of insurance policies the doctrine could apply to, and whether the payment by consent judgment was a "payment by way of benevolence" or an "ex gratia payment" that could not be subrogated.

The court examined the nature of the insurance policy and whether it was an indemnity policy or a contingency policy, which would determine the applicability of the doctrine of subrogation. It was established that the doctrine of subrogation could apply to both indemnity and contingency policies. The court further analysed the payment by consent judgment to determine if it constituted a "payment by way of benevolence" or an "ex gratia payment" incapable of being subrogated. The court held that the payment by consent judgment did not fit either of these categories, and therefore, the doctrine of subrogation was applicable in this case.

In conclusion, the court found in favour of the appellant, allowing the appeal. The court determined that the insurance policy in question was a contingency policy and that the payment by consent judgment did not constitute a "payment by way of benevolence" or an "ex gratia payment" incapable of being subrogated. Therefore, the doctrine of subrogation applied, and the respondent was required to repay the $70,557.30 to the appellant.

Orders

Orders of the court

Appeal allowed

Background

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Evidence

Evidence Before The Court

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Ratio Decidendi

Legal Principle Established

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